For the plaintiff-appellant,
there was a brief filed by Alan C. Olson and Alan C. Olson & Associates, S.C., New
Berlin, and oral argument by Alan C.
Olson.

For the defendant-respondent,
there was a brief filed by Nick G.
Kotsonis and Zachary J. Davis and
Crivello Carlson, S.C., Milwaukee,
and oral argument by Nick G. Kotsonis.

2012 WI 94

notice

This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No. 2010AP2705

(L.C. No.

2009CV1813)

STATE OF WISCONSIN:

IN SUPREME COURT

Kathleen DeBruin,

Plaintiff-Appellant,

v.

St. Patrick Congregation,

Defendant-Respondent.

FILED

JUL 12, 2012

Diane M. Fremgen

Clerk of Supreme Court

APPEAL from a judgment of the Circuit Court for
Walworth County.Affirmed.

¶1PATIENCE DRAKE ROGGENSACK, J. This is an appeal
from a decision of the Circuit Court for Walworth County[1]
that the court of appeals has certified to us pursuant to Wis. Stat. § 809.61
(2009–10).[2]We are asked to decide whether, under the
First Amendment of the United States Constitution and Article I, Section 18 of
the Wisconsin Constitution, Kathleen DeBruin's complaint against St. Patrick
Congregation (St. Patrick), alleging that her employment was terminated for an
improper reason, states a claim upon which relief may be granted. We conclude that it does not.Permitting the continuation of this type of
breach of contract or promissory estoppel claim by a ministerial employee,[3]
who seeks payment based on an allegedly improper reason for being terminated
from her employment, would impermissibly interfere in a religious institution's
choice of ministerial employees, in violation of the First Amendment of the
United States Constitution and Article I, Section 18 of the Wisconsin Constitution.

¶2Therefore, a court may not review whether St. Patrick improperly terminated
its ministerial employee because St. Patrick's choice of who shall serve as its
ministerial employee is a matter of church governance protected from state
interference by the First Amendment and by Article I, Section 18.Accordingly, DeBruin's complaint, which would
require a state court to evaluate why St. Patrick terminated its
ministerial employee, fails to state a claim upon which a court may grant
relief.Therefore, the circuit court
correctly dismissed DeBruin's complaint, and its decision is affirmed.[4]

I.BACKGROUND

¶3St. Patrick is a Catholic church in the Archdiocese of
Milwaukee.DeBruin began working for St.
Patrick in August 2002.On July 1,
2009, St. Patrick entered into a written, one-year employment contract with
DeBruin as the Director of Faith Formation.The contract described DeBruin's duties, the annual salary and fringe
benefits to which DeBruin would be entitled, the term of the contract, the
facilities to which DeBruin would have access as Director of Faith Formation,
and the procedures for employee evaluation and annual contract renewal.Additionally, the contract included
provisions governing termination of the employment relationship.Relevant to this appeal, the contract
provided:

The PARISH
agrees that the DIRECTOR OF FAITH FORMATION shall not be discharged during the
term of this contract, without good and sufficient cause, which shall be
determined by the PARISH.The PARISH
agrees that the Pastor of the PARISH will be responsible for giving the
employee notice of any dissatisfaction with service or conduct.Dismissal may be immediate or within a time
frame determined by the PARISH.

¶4On October 5, 2009, St. Patrick terminated DeBruin's
employment.It is undisputed that
DeBruin is a ministerial employee.[5]It is also undisputed that St. Patrick has
paid DeBruin for all of the services she rendered prior to her termination.

¶5In early December 2009, DeBruin filed this lawsuit against
St. Patrick.She alleges breach of
contract, asserting that St. Patrick terminated her employment "without
good and sufficient cause as that term is defined by the Contract of
Employment," and promissory estoppel, based on the same assertion.She seeks payment of $34,150.27, plus
interest on that amount.DeBruin asserts
that this amount constitutes damages for the period between October 5,
2009, when her employment was terminated, and June 30, 2010, the end of
the term of the written contract.Therefore,
the damages DeBruin now seeks comprise payments for salary that would have been
due if St. Patrick had retained her employment through the full term of the
contract.

¶6St. Patrick did not move to dismiss DeBruin's complaint on the
basis that St. Patrick terminated DeBruin for "good and sufficient cause"
within the meaning of the employment contract.Instead, relying on our decision in Coulee Catholic Schools v. LIRC,
2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, St. Patrick moved to dismiss
DeBruin's complaint for failure to state a claim upon which relief may be
granted, pursuant to Wis. Stat. § 802.06(2)(a)6.St. Patrick asserted that both the First
Amendment of the United States Constitution and Article I, Section 18 of the
Wisconsin Constitution preclude DeBruin, as a ministerial employee, from
obtaining court enforcement of her claims of breach of contract or promissory
estoppel based on the allegation that St. Patrick terminated her employment for
an improper reason.

¶7At the hearing on St. Patrick's motion to dismiss, St. Patrick
argued that, under Coulee, the court could not review St. Patrick's decision
to terminate DeBruin.Specifically, St.
Patrick noted that DeBruin conceded that she was a ministerial employee and
that St. Patrick is a religious institution.With these two concessions, St. Patrick argued that, under Coulee,
state court review of St. Patrick's reason for terminating DeBruin would
constitute impermissible interference with St. Patrick's religious mission, in
violation of the First Amendment and Article I, Section 18.

¶8DeBruin responded by arguing that Coulee was inapposite in
the context of her complaint, because the state antidiscrimination law at issue
in Coulee was distinguishable from the neutral principles of law
governing contracts and promissory estoppel that would be applied in this
dispute.DeBruin claimed that applying
such neutral principles of law would not constitute impermissible government
action because the court could examine DeBruin's complaint and determine the
truth or falsity of her allegations without interfering with the religious institution's
mission.Therefore, notwithstanding
DeBruin's concessions that she satisfied both parts of the Coulee
ministerial employee inquiry, she argued that her complaint could go forward.

¶9After hearing arguments on St. Patrick's motion, the circuit court
dismissed DeBruin's complaint.The court
agreed with St. Patrick that because St. Patrick is a religious institution and
because DeBruin was a ministerial employee, pursuant to our decision in Coulee,
DeBruin's complaint failed to state a claim upon which relief could be
granted.DeBruin appealed, and the court
of appeals certified the matter to us. We
accepted the certification.

¶11St. Patrick's motion to dismiss DeBruin's complaint was granted at
the pleading stage.Such a motion tests
the legal sufficiency of the complaint.John
Doe 1, 303 Wis. 2d 34, ¶12.For
purposes of the motion, we accept as true all facts well-pleaded in the
complaint and the reasonable inferences therefrom.Kaloti Enters., Inc. v. Kellogg Sales Co.,
2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205.We will dismiss a complaint if it states no
legal claim upon which relief can be granted.Id.

¶12St. Patrick asserts that the First Amendment and Article I, Section
18 preclude court review of its reason for terminating DeBruin's
employment.Therefore, a court must
review the complaint, which incorporates and attaches a copy of DeBruin's
employment contract, in light of the effect of the First Amendment and Article
I, Section 18 on St. Patrick's decision to terminate DeBruin's employment.

1.First
Amendment

¶13The First Amendment of the United States Constitution provides in
relevant part:"Congress shall make
no law respecting an establishment of religion or prohibiting the free exercise
thereof."U.S. Const. amend.
I.The First Amendment is made
applicable to the states by the Fourteenth Amendment.Cantwell v. Connecticut, 310 U.S. 296,
303 (1940).First Amendment protections
are afforded to institutions, as well as to individuals.Coulee, 320 Wis. 2d 275, ¶38.

¶14The Fourteenth Amendment does not apply the First Amendment to
purely private conduct.Rather, it is
when state action infringes on constitutionally protected rights that the
Fourteenth Amendment comes into play.SeeShelley v. Kraemer, 334 U.S. 1, 13 (1948).Shelley arose in the context of an equal
protection challenge to state court enforcement of a private, racially
discriminatory restrictive covenant.Id.
at 4-8.Nonetheless, the constitutional
principles that underlie Shelley are analogous to other constitutional
protections, including those afforded by the First Amendment.

¶15To explain further, Shelley did not begin with governmental
action; but rather, it began as racial discrimination in a restrictive
covenant, i.e., in a private contract.Kraemer, who was Caucasian and a party to the covenant, sought to
enforce the covenant against Shelley, who was African-American and had
purchased the property encumbered by the covenant.Id. at 4-6.The participation of the State did not become
an issue until Kraemer sought court enforcement of the restrictive
covenant.Id. at 13.The Court explained that, "restrictions
on the right of occupancy of the sort sought to be created by the private
agreements . . . could not be squared with the requirements of the
Fourteenth Amendment if imposed by state statute or local ordinance."Id. at 11.However, the court also explained that "[s]o
long as the purposes of those agreements are effectuated by voluntary adherence
to their terms, it would appear clear that there has been no action by the
State."Id. at 13.

¶16There was more than voluntary adherence to a private agreement in Shelley.Instead, a party to the discriminatory
restrictive covenant sought enforcement in state court, thereby asking the State
to participate in the discrimination.Id.With the extra step of judicial intervention,
the Supreme Court concluded that judicial intervention constituted state
action.Id. at 14.

¶17In reasoning that court enforcement of a private discriminatory
contract constituted state action, the Court said, "[t]hat the action of
state courts and judicial officers in their official capacities is to be
regarded as action of the State within the meaning of the Fourteenth Amendment,
is a proposition which has long been established by decisions of this Court."Id. at 14.The Court pointed out that it was "clear
that but for the active intervention of the state courts, supported by the full
panoply of state power, petitioners would have been free to occupy the
properties in question without restraint."Id. at 19.Accordingly, Shelley
concluded that when constitutionally protected rights were at issue and a
contravention of those rights could not be accomplished without state action,
court enforcement constituted state action of the type that was proscribed by
the Fourteenth Amendment.Id.

¶18So, too, in the case before us, DeBruin seeks state court
enforcement of a provision in a private contract in order to invalidate St.
Patrick's reason for terminating her employment.However, the First Amendment grants religious
institutions "'independence from secular control or manipulation——in short, power to decide
for themselves, free from state interference, matters of church government as
well as those of faith and doctrine.'"Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565
U.S. __, 132 S. Ct. 694, 712 (2012) (Alito, J., concurring) (quoting Kedroff
v. Saint Nicholas Cathedral of the Russian Orthodox Church in N. Am., 344
U.S. 94, 116 (1952)).Therefore, DeBruin
asks the state courts to engage in activity that the Constitution
prohibits.

¶19In Serbian Eastern Orthodox Diocese for the United States of
America and Canada v. Milivojevich, 426 U.S. 696 (1976), the Supreme Court
reviewed state court action in the context of a religious institution's
termination of one of its ministers.In Serbian
Eastern Orthodox Diocese, the Holy Synod of Bishops, the Church's highest
governing body, applied church rules to defrock a church bishop, Dionisije
Milivojevich.Id. at 699, 705-07.Milivojevich brought suit in state court,
seeking, among other claims, "to have himself declared the true Diocesan
Bishop."Id. at 707.The Illinois Supreme Court held that
Milivojevich's removal as bishop was "arbitrary," and therefore, the
court set it aside.Id. at
708.

¶20In reversing the Illinois Supreme Court, the United States Supreme
Court explained that "[t]he fallacy fatal to the judgment of the Illinois
Supreme Court is that it rests upon an impermissible rejection of the decisions
of the highest ecclesiastical tribunals . . . and impermissibly
substitutes its own inquiry into church polity."Id.The Court explained:

For civil courts to analyze whether the ecclesiastical
actions of a church judicatory are in that sense "arbitrary" must
inherently entail inquiry into the procedures that canon or ecclesiastical law
supposedly requires the church judicatory to follow, or else into the
substantive criteria by which they are supposedly to decide the ecclesiastical
question.But this is exactly the
inquiry that the First Amendment prohibits; recognition of such an exception
would undermine the general rule that religious controversies are not the
proper subject of civil court inquiry, and that a civil court must accept the
ecclesiastical decisions of church tribunals as it finds them.

Id. at 713.Accordingly, church decisions in matters of
faith and ministry are so fundamental to the free exercise of religious liberty
that civil courts are prohibited from delving into the reasons for
religion-based decisions.[6]Id.

¶21Although the opinion does not cite Shelley, Serbian
Eastern Orthodox Diocese is consistent with Shelley because, like Shelley,
Serbian Eastern Orthodox Diocese involved state court adjudication of
privately created rights.Specifically,
in Serbian Eastern Orthodox Diocese, the complainant asked the courts to
evaluate the Holy Synod's application of church rules to the ecclesiastical
decision about whether to defrock a bishop.Seeid. at 708.No
state or federal statute was involved in or cited by the Supreme Court in Serbian
Eastern Orthodox Diocese.

¶22Included within the decisions protected by the First Amendment are
the hiring and firing of ministerial employees, regardless of the motivation
behind those decisions.Young v. N.
Ill. Conference of United Methodist Church, 21 F.3d 184, 186 (7th Cir.
1994); see alsoRayburn v. Gen. Conference of Seventh-Day Adventists,
772 F.2d 1164, 1169 (4th Cir. 1985).Accordingly, religious institutions may make arbitrary decisions
regarding hiring or firing of ministerial employees and nevertheless be free from
civil review for having done so.Serbian
Eastern Orthodox Diocese, 426 U.S. at 708-09; Young, 21 F.3d at 187.

¶23It has been universally recognized that the First Amendment
protects religious institutions' decisions about whom to hire as ministerial
employees and when to terminate their employment.Coulee, 320 Wis. 2d 275,
¶39.Accordingly, a terminated
ministerial employee's complaint alleging that her religious institution
employer terminated her for an improper reason is not viewed through the lens
that we usually apply when examining the legal sufficiency of a complaint.SeeHosanna-Tabor, 132 S. Ct.
at 706.Rather, the allegations in the
complaint are viewed in the context of the First Amendment's proscriptions
against state interference with religious institutions' choices of who shall be
the voice of their faith.Id. at
706-08.As Justice Alito explained in Hosanna-Tabor,
"Religious autonomy means that religious authorities must be free to
determine who is qualified to serve in positions of substantial religious
importance."Id. at 712
(Alito, J., concurring).

¶24When a ministerial employee is terminated, the religious
institution's decision about who shall teach its faith and how that shall be
done are intertwined with the decision to terminate the employee.Courts can have no role in affirming or
overturning such a decision based on the reason why the religious institution
terminated the employment.As the United
States Supreme Court has explained:

Requiring a church to accept or retain an unwanted
minister, or punishing a church for failing to do so, intrudes upon more than a
mere employment decision.Such action
interferes with the internal governance of the church, depriving the church of
control over the selection of those who will personify its beliefs.

Id. at 706.We voiced the same concept in Coulee
when we explained, "the real heart of the ministerial exception
. . . is preventing the state from intruding into the mission of
religious organizations or houses of worship."Coulee, 320 Wis. 2d 275,
¶55.

2.DeBruin's complaint

¶25Turning to DeBruin's complaint, she seeks court participation in
enforcing a private contract against St. Patrick, as Kraemer did against Shelley.SeeShelley, 334 U.S. at 4-6.DeBruin seeks money damages from St. Patrick,
alleging that St. Patrick terminated her employment for an improper reason. She
alleges that her contract with St. Patrick limited the reasons for which St.
Patrick could terminate her employment to "good and sufficient cause,"
and that her termination was not done within that contractual limitation.As we review her complaint, we note that
DeBruin is not seeking payment for services she has already provided.[7]

¶26It is important to a proper First Amendment analysis of DeBruin's
complaint to focus on the nature of the protections that are afforded to
religious institutions and why they are afforded.To examine whether St. Patrick could enter
into a contract with DeBruin and how that contract may be interpreted, frames
the issue too broadly and is not required by the issue presented in this case.[8]Furthermore, beginning with a contract
analysis would cause a court to diminish the priority given to the policies
that drive the First Amendment and would lead a court to err.

¶27The First Amendment grants St. Patrick free choice in deciding that
a ministerial employee should be terminated because it is that type of employee
"who will preach [religious institutions'] beliefs, teach their faith, and
carry out their mission."Hosanna-Tabor,
132 S. Ct. at 710.As the Supreme
Court has explained, when a ministerial employee sues her religious employer to
contest the validity of the reason for which she was fired, "the First
Amendment has struck the balance for us.The church must be free to choose those who will guide it on its
way."Id. (Emphasis added.)Stated otherwise, the First Amendment
restrains the State from invalidating the institution's reasons that underlie
its choice.

¶28St. Patrick fired DeBruin, a ministerial employee.If DeBruin were not a ministerial employee
and made the same claim, we might interpret the contract and consider whether
St. Patrick had "good and sufficient cause" for DeBruin's
termination.However, the First
Amendment gives St. Patrick the absolute right to terminate DeBruin for any
reason, or for no reason, as it freely exercises its religious views. It is the decision itself, i.e., who shall be
the voice of St. Patrick, that affects the faith and mission of the church. Serbian Eastern Orthodox Diocese, 426
U.S. at 713; Young, 21 F.3d at 186-87; Rayburn, 772 F.2d at 1169.

¶29The dissent relies on Petruska v. Gannon University, 462
F.3d 294 (3d Cir. 2006), to support its decision not to dismiss DeBruin's
contract claim.[9]Petruska claimed that reducing her pastoral
responsibilities was a breach of her contract with Gannon University.Id. at 310.At one point, the court acknowledged that if
judicial review of the contract claim entailed "ecclesiastical inquiry,"
the claim could not proceed.Id.
at 312.However, any inquiry into the
validity of a religious institution's reasons for the firing of a ministerial
employee will involve consideration of ecclesiastical decision-making.SeeCombs v. Cent. Tex. Annual
Conference of the United Methodist Church, 173 F.3d 343, 350 (5th Cir.
1999) (stating that "we cannot conceive how the federal judiciary could
determine whether an employment decision concerning a minister was based on
legitimate or illegitimate grounds without inserting ourselves into a realm
where the Constitution forbids us to tread, the internal management of a church").

¶30Accordingly, a court cannot interpret DeBruin's contract with St.
Patrick to determine whether St. Patrick had "good and sufficient cause"
to terminate DeBruin because in so doing, the court would infringe upon St.
Patrick's First Amendment right to freely exercise its religious preferences
and thereby be the sole decision-maker about who will preach its beliefs, teach
its faith and carry out its mission.As
the United States Supreme Court has explained:

By imposing an unwanted minister, the state infringes
the Free Exercise Clause, which protects a religious group's right to shape its
own faith and mission through its appointments.According the state the power to determine which individuals will
minister to the faithful also violates the Establishment Clause, which
prohibits government involvement in such ecclesiastical decisions.

Hosanna-Tabor, 132 S.
Ct. at 706.

¶31Where a plaintiff alleges that her termination was based on an
improper reason, it does not matter whether she seeks damages based on a
contract theory or a statutory theory.In either case, the State is effectively enjoined by the First Amendment
from interfering with the religious institution's right to choose its own
ministers.Serbian Eastern Orthodox
Diocese, 426 U.S. at 708-09.The Free
Exercise Clause of the First Amendment guarantees religious freedom from the
State's imposition of an unwanted minister on a religious institution.Hosanna-Tabor, 132 S. Ct. at 710.

¶32Stated otherwise, if DeBruin's claim is not dismissed, a court will
be required to decide whether St. Patrick terminated DeBruin without "good
and sufficient cause," within the meaning of those terms in the
contract.A court may then bring to bear
legal concepts relative to contract interpretation and performance, such as
whether St. Patrick proceeded in good faith when it terminated DeBruin.SeeChayka v. Santini, 47 Wis. 2d
102, 107 n.7, 176 N.W.2d 561 (1970) (explaining that every contract includes
the obligation of good faith and fair dealing between the parties).Questioning St. Patrick's good faith will
permit a challenge to its reasons for terminating DeBruin.The First Amendment does not permit the State
to interfere with St. Patrick's free exercise of the choice of religious minister
for its religious beliefs.Hosanna-Tabor,
132 S. Ct. at 707.

¶33Furthermore, if a court were to award damages on DeBruin's claim,
which does not relate to services she has already provided, St. Patrick would
be required, by the State, to pay for its decision to terminate an unwanted
ministerial employee.Seeid.
at 709.This, the First Amendment does
not permit.Seeid.As the United States Supreme Court has said, "[a]n
award of such relief would operate as a penalty on the Church for terminating
an unwanted minister, and would be no less prohibited by the First Amendment
than an order overturning the termination."Seeid.

¶34Furthermore, while Hosanna-Tabor did not arise in a contract
context, which the Supreme Court noted, id. at 710, the First Amendment
protections that drove the result in Hosanna-Tabor are the same
protections that bear on DeBruin's claim for damages to compensate her for the
denial of prospective employment.In
addition, Serbian Eastern Orthodox Diocese, which did not arise in a
discrimination claim context, and is based on the Free Exercise Clause, employs
discussions of state limitations that are very similar to Hosanna-Tabor
and support St. Patrick's position.

¶35Accordingly, we conclude that DeBruin's complaint, viewed through a
First Amendment lens, fails to state a claim upon which a court may grant
relief.Stated otherwise, the State is
effectively enjoined by the First Amendment from interference with such
ecclesiastical decisions.

3.Article I,
Section 18

¶36Article I, Section 18 of the Wisconsin Constitution provides in
relevant part:"The right of every
person to worship Almighty God according to the dictates of conscience shall
never be infringed; nor shall any person be compelled to attend, erect or
support any place of worship, or to maintain any ministry, without consent
. . . ."Wis. Const.
art. I, § 18.Article I, Section 18
applies to religious institutions, as well as to individuals.Coulee, 320 Wis. 2d 275,
¶58.

¶37We have concluded that Article I, Section 18 serves similar
purposes in regard to protecting religious freedoms as do the Establishment
Clause and the Free Exercise Clause of the First Amendment.Id., ¶60 (citing State ex rel.
Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972)).Given the expansive language employed in
Article I, Section 18, the protections afforded religious liberties therein are
at least as broad as those afforded by the First Amendment.Id., ¶66.More specifically, we have concluded that
Article I, Section 18 precludes state interference with religious organizations'
hiring and firing of ministerial employees.Id., ¶67.Accordingly, we
conclude that Article I, Section 18 provides an additional basis, independent
of the First Amendment, for dismissing DeBruin's complaint.

III.CONCLUSION

¶38Permitting the continuation of this type of breach of contract or
promissory estoppel claim by a ministerial employee, who seeks payment based on
an allegedly improper reason for being terminated from her employment, would
impermissibly interfere in a religious institution's choice of ministerial
employee, in violation of the First Amendment of the United States Constitution
and Article I, Section 18 of the Wisconsin Constitution.

¶39Therefore, a court may not review whether St. Patrick improperly terminated
its ministerial employee because St. Patrick's choice of who shall serve as its
ministerial employee is a matter of church governance protected from state
interference by the First Amendment and by Article I, Section 18.Accordingly, DeBruin's complaint, which would
require a court to evaluate why St. Patrick terminated its ministerial
employee, fails to state a claim upon which a court may grant relief.Therefore, the circuit court correctly
dismissed DeBruin's complaint, and its decision is affirmed.[10]

By the Court.—The judgment of the circuit
court is affirmed.

¶40N. PATRICK CROOKS, J. (concurring).This is an employment contract dispute that
centers on the contract's termination clause, and it requires the application
of well-established contract principles.The analysis in such a case starts with the terms of the contract.The termination clause in this case contains
a highly unusual and crucial provision:it states that the employee "shall not be discharged during the
term of this contract, without good and sufficient cause, which shall be
determined by the [employer]."What
is unusual, of course, is that the contract explicitly and by agreement leaves
the determination of "good and sufficient cause" to be determined by
one party: the employer.Those words are
the key to the proper analysis of this case because, when viewed in light of
well-established principles of contract law, they reveal the termination clause
to be a textbook case of an illusory promise——"words in promissory form
that promise nothing."[11]Wisconsin precedent on this score is clear:
"If a party to a purported contract has, in fact, made only illusory
promises and therefore not constrained him- or herself in any way, he or she
has given no consideration and therefore no contract exists.Because no contract exists, neither party has
a cause of action for breach."[12]In other words, as described in one treatise
on contracts citing case law, where the contract indicates that a party may at
its own option decide to terminate, termination is not a breach but is
"merely the exercise of the reserved power to terminate."[13]

¶41To resolve a contract case, we start by looking at the contract
terms, and we give effect to its terms unless they are ambiguous.[14]In the purported contract at issue here the
parties, Kathleen DeBruin and her employer, St. Patrick Congregation (the
Parish), unambiguously reserved solely to the employer the right to determine
what is just cause for termination.For
that reason, I would affirm the circuit court's dismissal of the complaint, but
on the grounds that the purported contract is based on an illusory promise
which cannot serve as consideration for a contract, and therefore no
enforceable contract exists.The
promissory estoppel claim fails for an almost identical reason: a promissory
estoppel claim is based on a promise, and where there is nothing but an
illusory promise, there is no basis for reliance.[15]

¶42The circuit court granted the Parish's motion to dismiss on
constitutional grounds, while seeming to conclude that the contract of
employment was terminable at will and was based on an illusory promise.[16]The circuit court, in granting the motion to
dismiss, referred to the constitutionally based ministerial employee test
discussed in Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d
275, 768 N.W.2d 868, as well as the contract language reserving to the Parish
the right to determine good cause for termination:

It's admitted that the Catholic church['s]. . . mission is to propagate
the faith and that [DeBruin's] particular jobwas to be the – again, Director of Faith Promotions [sic] so she fits
into the two issues [relating to the organization's religious mission and the
nature of the duties of the particular employee] and with that then the Court
can't make further inquiry.But the
Court does note that the contract called for gives the parish the right to
terminate for cause only they – and they are the ones that can determine
cause . . . and therefore even if the Court were to make
further inquiry it would appear that there was the right of the parish anyways
but I don't think I get that far.

Because we do not normally
reach constitutional issues in cases that are resolvable on other grounds,[17]
I would not reach the constitutional arguments that are raised by the
Parish.For these reasons, as explained
herein, I respectfully concur.

¶43As the employer, the Parish, noted in its brief, leaving the
determination of what constitutes good and sufficient cause for termination to
the employer has the "practical effect" of nullifying the contractual
limitation on the employer.[18]As noted previously, under the applicable
principles of contract law and our precedent, this contract fails because it rests
on an illusory promise.A Wisconsin case
describes how an illusory promise, under application of contract law
principles, leads to a conclusion that the contract fails for lack of
consideration:

An illusory promise is a promise in form only: one that
its maker can keep without subjecting him- or herself to any detriment or
restriction. An archetypal example of an illusory promise is the statement that
"I promise to do as you ask if I please to do so when the time
arrives."A promisor can keep that
promise by either doing as the promisee asks or not, and so the promisor
maintains total freedom to do as he or she wants. Since the maker of an
illusory promise assumes no detriment or obligation, an illusory promise is not
regarded as consideration.If a party to
a purported contract has, in fact, made only illusory promises and therefore
not constrained him- or herself in any way, he or she has given no consideration
and therefore no contract exists. Because no contract exists, neither party has
a cause of action for breach.

¶44In another Wisconsin case discussing illusory promises, Gerruth
Realty Co. v. Pire, 17 Wis. 2d 89, 115 N.W.2d 557 (1962), this court
concluded that the purported contract at issue was void for indefiniteness, a
conclusion tantamount to a determinationthat the promise involved was illusory.In that case, we stated, "[A]ny interpretation, which allows one
party to a contract to determine without limitation and in a subjective manner
the meaning of an ambiguous term, comes dangerously close to an illusory or
aleatory contract, if it does not in fact reach it."Id. at 92. While we are not dealing with an ambiguous term here, the
result is the same——no enforceable contract.

¶45These cases apply well-settled contract law principles.The treatises on contract law describe the
concept of illusory promise in slightly different terms, but there is agreement
on the essence of the concept.The
writers of the treatise Corbin on Contracts describe such a
"promise" as follows:

[A]n illusory promise is not a promise at all as that
term has been herein defined.If the
expression appears to have the form of a promise, this appearance is an
illusion. . . . The fundamental element of a promise is a
promisor's expression of intention that the promisor's future conduct shall be
in accord with the present expression, irrespective of what the promisor's will
may be when the time for performance arrives.In the supposed case [in which C promises to forbear from suing P as
long as C wishes to forbear] [t]he clear meaning of the expression is that C's
future conduct will be in accord with his or her own future will, just as it
would have been had nothing at all been said.

Where an illusory promise is made, that is, a promise
merely in form, but in actuality not promising anything, it cannot serve as
consideration. . . . In such cases, where the promisor may
perform or not, solely on the condition of his whim, his promise will not serve
as consideration. . . . [A] promise to employ as long as it
suits the employer will not serve as consideration for the employee's return
promise.

e. Illusory promises; mere statements of intention.
Words of promise which by their terms make performance entirely optional with
the "promisor" whatever may happen, or whatever course of conduct in
other respects he may pursue, do not constitute a
promise. . . . Even if a present intention is manifested,
the reservation of an option to change that intention means that there can be
no promisee who is justified in an expectation of performance.

Restatement (Second) of
Contracts § 2 (1981).

¶46Courts have applied this principle in a variety of contexts,
relying on the canon of construction under which courts give effect to the
terms agreed upon by the parties to the contract.In a case that concerned a contract between
an employer and an employee, the court examined a letter where the employer
stated, "I propose to employ you to work for me for 15 months at my
option."Middleton v. Holecroft,
270 S.W.2d 90, 93 (Mo. Ct. App. 1954).The court found that "[t]he plaintiff, by inserting the clause 'at
my option,' reserved the right to give the defendant work if he saw fit and if
he did not, there was no obligation on him to do so, and the defendant would be
without remedy."Id.The court concluded, "In other words,
the defendant could not have enforced the contract."Id.In a commercial breach of contract case, a Michigan federal district
court held that where the terms exempted a party from liability for breach, the
party's "promise to perform is, therefore, entirely illusory . . . ."
Commercial Movie Rental, Inc. v. Larry Eagle, Inc., 738 F. Supp. 227,
230-31 (W.D. Mich. 1989). The court then reasoned that "the entire
contract is void for lack of consideration" and the defendant was entitled
to judgment "because the contract it allegedly breached never
existed."Id. at 231.

¶47It is difficult to imagine a clause that more perfectly illustrates
these principles than the one presented by the contract between the employee,
DeBruin, and the employer, the Parish, in this case.This is made clear from the first document
filed in this case, the complaint, in which DeBruin alleges that the Parish
"terminated Ms. DeBruin's employ without good and sufficient cause as that
term is defined by the Contract of Employment."Compl., ¶5.There is, however, no separate clause in the contract that defines
"good and sufficient cause" or, for that matter, any other term in
the contract.The term "good and
sufficient cause" is, by the terms of the contract, defined as having a
meaning "which shall be determined by the Parish."In this case, the Parish's
"promise" was no more than that its "future conduct will be in
accord with [its] own future will, just as it would have been had nothing at
all been said."See 1
Perillo, Corbin on Contracts § 1.17, at 47.For this reason, both of DeBruin's claims,
breach of contract and promissory estoppel, which are based on an illusory
promise, must fail.

¶48In the purported contract at issue here the parties unambiguously
reserved solely to the employer the right to determine what is just cause for
termination.For that reason, I would
affirm the circuit court's dismissal of the complaint, but on the grounds that
the purported contract is based on an illusory promise which cannot serve as
consideration for a contract, and therefore no enforceable contract
exists.The Plaintiff's promissory
estoppel claim fails for an almost identical reason: a promissory estoppel
claim is based on a promise, and where there is nothing but an illusory
promise, there is no basis for reliance.

¶49The circuit court granted the Parish's motion to dismiss on
constitutional grounds, while seeming to conclude that the contract of
employment was terminable at will and was based on an illusory promise.The circuit court, in granting the motion to
dismiss, referred to the constitutionally based ministerial employee test
discussed in Coulee as well as the contract language reserving to the
Parish the right to determine good cause for termination.Because we do not normally reach
constitutional issues in cases that are resolvable on other grounds, I would
not reach the constitutional arguments that are raised by the Parish.For these reasons, as explained herein, I
respectfully concur.

¶50DAVID T. PROSSER, J. (concurring).This
case implicates important issues in the delicate relationship between church
and state.Recognizing this importance,
the three other justices who have written in the case have made a valuable and
good faith effort to resolve the present dispute.I write separately to provide some additional
perspective.

I

¶51Kathleen DeBruin (DeBruin) began her employment with the St.
Patrick Congregation (St. Patrick) in Whitewater, Wisconsin, in 2002.On July 1, 2009, she and St. Patrick entered
into a one-year Contract of Employment.DeBruin was slated to serve as Director of Faith Formation for St.
Patrick.There is no dispute that
DeBruin served a ministerial function in a religious organization.

¶52Section 8 of the employment contract contained the following
termination clause:

8.Termination:

A.The PARISH agrees that voluntary termination of this contract can
be made by the mutual consent of both parties within thirty (30) days after
written notice.

B.The PARISH agrees that the DIRECTOR OF FAITH FORMATION shall not
be discharged during the term of this contract, without good and sufficient
cause, which shall be determined by the PARISH.The PARISH agrees that the Pastor of the PARISH will be responsible for
giving the employee notice of any dissatisfaction with service or conduct.Dismissal may be immediate or within a time
frame determined by the PARISH.

C.In the event that the DIRECTOR OF FAITH FORMATION is involuntarily
terminated, if requested by the Pastor of the PARISH and agreed to by the
DIRECTOR OF FAITH FORMATION, the DIRECTOR OF FAITH FORMATION shall continue to
render services and be paid in accordance with the terms of this Agreement, for
the period of time that services are provided.

¶53On October 5, 2009, DeBruin was fired.On December 3, 2009, she filed suit in
Walworth County Circuit Court, alleging that "St. Patrick terminated Ms.
[DeBruin]'s employ without good and sufficient cause as that term is defined
by" her contract.DeBruin sought
damages for breach of contract or promissory estoppel.She did not seek reinstatement.

¶54St. Patrick filed its answer on December 21, 2009.This answer included one affirmative defense
not applicable here.On April 30, 2010,
St. Patrick filed an amended answer including several additional affirmative
defenses including: "As and for a second affirmative defense, the
plaintiff may have failed to state a claim upon which relief can be granted....As and for a third
affirmative defense, the plaintiff's claims, if any, are barred by the Supreme
Court decision in Coulee Catholic Schools vs. LIRC, 320 Wis.2d 275 (2009)."

¶55On
July 21, 2010, St. Patrick filed a motion to dismiss DeBruin's complaint for
failure to state a claim.In its brief,
St. Patrick relied on the First Amendment to the United States Constitution and
Article I, Section 18 of the Wisconsin Constitution, as well as the language in
the termination clause, to support its motion to dismiss.

¶56DeBruin responded, arguing that contract claims are different from
anti-discrimination suits brought by government entities and that the case
could be decided on neutral principles of law, namely, whether DeBruin's
alleged failure to perform background checks was "good and sufficient
cause" for termination under her contract with St. Patrick.

¶57As discussed by other writers, Walworth County Circuit Judge John
R. Race held a hearing and granted the motion to dismiss.The circuit court identified several of the
critical themes that emerge in this opinion.

¶58After DeBruin appealed, the court of appeals certified the
following question to this court:"In light of the Wisconsin Supreme Court's decision in Coulee
Catholic Schools v. LIRC, 2009 WI 88, 320 Wis.2d275,
768 N.W.2d868,
are religious organizations immune from common law breach of contract lawsuits
brought by ministerial employees?"

II

¶59The
court of appeals certified a major constitutional question that is not
susceptible to a yes or no answer.We
need not address this question if the case can be decided on other grounds.

¶60Kathleen
DeBruin cannot win this case because she has not stated a claim that a
Wisconsin court can decide in her favor.

¶62The
first paragraph of Hosanna-Tabor stated the issue in that case:

Certain
employment discrimination laws authorize employees who have been wrongfully
terminated to sue their employers for reinstatement and damages.The question presented is whether the
Establishment and Free Exercise Clauses of the First Amendment bar such an
action when the employer is a religious group and the employee is one of the
group's ministers.

132 S.Ct. at 699.

¶63Coulee stated its question as "whether [the
plaintiff's] age discrimination claim under the [Wisconsin Fair Employment Act]
is precluded by the First Amendment and/or the Freedom of Conscience Clauses in
Article I, Section 18 of the Wisconsin Constitution."Coulee, 320 Wis.2d275, ¶2.

¶64The
present case does not involve the "ministerial exception" as
discussed in Hosanna-Tabor and Coulee because it does not feature an
executive branch government agency attempting to enforce government employment
discrimination laws or regulations.Instead, this case involves a "ministerial" employee of a
religious organization attempting to enforce a private employment contract.

¶65Hosanna-Tabor
states that: "We express no view on whether the [ministerial] exception
bars other types of suits, including actions by employees alleging breach of
contract or tortious conduct by their religious employers."Hosanna-Tabor, 132 S. Ct. at 710
(emphasis added).Coulee, in
turn, said that "We do not mean to suggest that anything interfering with
a religious organization is totally prohibited. General laws related to building
licensing, taxes, social security, and the like are normally
acceptable," 320 Wis. 2d 275, ¶65 (emphasis added), and it
heavily relied on Rayburn v. General Conference of Seventh-Day Adventists,
772 F.2d 1164, 1171 (4th Cir. 1985), where the court said: "Like any
other . . . organization [churches] may be held
liable . . . upon their valid contracts."(Emphasis added).

¶66Thus,
Hosanna-Tabor and Coulee do not explicitly bar a ministerial
employee's suit to enforce an employment contract.

¶67On
the other hand, Hosanna-Tabor seemingly alluded to our certified
question in its reference to "breach of contract," and both Hosanna-Tabor
and Coulee contain some very broad language that would appear to cover a
religious organization's hiring and termination of "ministerial"
employees.In Hosanna-Tabor, the
Court said:

The members of a religious group put their faith in the
hands of their ministers.Requiring a
church to accept or retain an unwanted minister, or punishing a church for
failing to do so, intrudes upon more than a mere employment decision.Such action interferes with the internal
governance of the church, depriving the church of control over the selection of
those who will personify its beliefs.By imposing an unwanted minister, the state infringes the Free Exercise
Clause, which protects a religious group's right to shape its own faith and
mission through its appointments.According the state the power to determine which individuals will
minister to the faithful also violates the Establishment Clause, which prohibits
government involvement in such ecclesiastical decisions.

Id. at 706 (emphasis
added).

The interest
of society in the enforcement of employment discrimination statutes is
undoubtedly important.But so too is the
interest of religious groups in choosing who will preach their beliefs, teach
their faith, and carry out their mission.When a minister who has been fired sues her church alleging that her
termination was discriminatory, the First Amendment has struck the balance for
us.The church must be free to choose
those who will guide it on its way.

Id. at 710.

¶68Coulee utilizes not only the First Amendment but also
Article I, Section 18 of the Wisconsin Constitution:

This court
has stated that Article I, Section 18 serves the same dual purposes as the
Establishment Clause and Free Exercise Clause of the U.S. Constitution.However, we have also recognized that these
provisions, though sharing some similarities with the federal provisions, are
not the same.The protections and
prohibitions in the Wisconsin Constitution are far more specific.And with regard to the rights of conscience,
this clause contains extremely strong language, providing expansive protections
for religious liberty.Thus, we are not
limited to current First Amendment jurisprudence when interpreting our own
constitutional protections for religious liberty; rather, we are required to
give effect to the more explicit guarantees set forth in our state
constitution.

Coulee, 320 Wis.2d275, ¶60 (citations omitted).

The state simply has no authority to control or
interfere with the selection of spiritual leaders of a religious organization
with a religious mission.The text
of our constitution states that the state cannot do it——at all.The main
inquiry is not how important the right in question is, but whether the law is
"controlling" or "interfering with" religious freedom.

Id., ¶63 (emphasis added).

The Wisconsin
Constitution, with its specific and expansive language, provides much broader
protections for religious liberty than the First Amendment.We need not explore the outer boundaries of
those protections here.But it is clear
that the Wisconsin Constitution provides at least the protections contained in
the First Amendment.

Id., ¶66.

¶69Wisconsin
courts are not executive branch agencies like the EEOC and LIRC, but that does
not mean that they are not government entities engaging in "state
action" when they enforce contracts.The Fourteenth Amendment "governs any action of a State, 'whether
through its legislature, through its courts, or through its executive or
administrative officers.'"Mooney
v. Holohan, 294 U.S. 103, 113 (1935)(quoting Carter v. Texas, 177
U.S. 442, 447 (1900))(emphasis added).

¶70Justice
Roggensack's opinion cites Shelley v. Kraemer, 334 U.S. 1 (1948), for
the proposition that "the action of state courts and judicial officers in
their official capacities is to be regarded as action of the State within the
meaning of the Fourteenth Amendment."Lead op., ¶17.Shelley was
preceded in this respect by such cases as Virginia v. Rives, 100 U.S.
313, 318 (1879), and Civil Rights Cases, 109 U.S. 3, 17 (1883), and
followed by Palmore v. Sidoti, 466 U.S. 429, 432 n.1 (1984).As in Shelley, judicial enforcement of
a contract can constitute state action.Cf.Gerber v. Longboat Harbour N. Condominium, Inc., 724 F. Supp. 884 (M.D.
Fla. 1989)(vacated in part on other grounds Gerber v. Longboat Harbour N.
Condominium, Inc., 757 F.Supp. 1339 (M.D. Fla. 1991)).

¶71At
a minimum, Hosanna-Tabor and Coulee put Wisconsin courts on high
alert when they are asked to enforce a contract by a religious organization in
a manner that the religious organization contends is a violation of its
constitutional rights.

¶72Second,
the contract provision that DeBruin relies upon is illusory.

¶74Many
employment contracts include a provision protecting an employee from discharge
without cause.These provisions replace
and reverse the employment-at-will rule.

¶75In
this case, the termination clause contains discharge "without cause"
protection.However, it then nullifies
that protection by assigning to St. Patrick the right to determine what
"good and sufficient cause" is.In short, the protection that DeBruin relies on does not exist; it is
illusory; and DeBruin is basically subject to employment-at-will.

(e) Illusory promises; mere
statements of intention.Words of
promise which by their terms make performance entirely optional with the
"promisor" whatever may happen, or whatever course of conduct in
other respects he may pursue, do not constitute a promise.Even if a present intention is manifested,
the reservation of an option to change that intention means that there can be
no promisee who is justified in an expectation of performance.

Restatement (Second) of Contracts § 2 (1981).

¶78My
only difference with Justice Crooks' opinion is with his conclusion that
because of the illusory "without cause" protection in the termination
clause, "no contract exists," Justice Crooks' concurrence, ¶40, or
"no enforceable contract exists," Id., ¶¶41, 48.This difference, however, is
fundamental.From St. Patrick's
perspective, it did not breach the contract; it exercised its rights under the
contract.

¶79There
may well be elements of the contract that could be enforced, but not the part
of the termination clause that DeBruin relies on, because it afforded her no
protection, as a matter of law.

¶80Third,
the termination clause does more than confirm St. Patrick's rights as an
at-will employer with respect to at least some of its employees.It protects St. Patrick's rights as a
religious organization.The termination
clause as a whole specifically reserves to St. Patrick the right to freely
exercise its religious prerogatives under the First Amendment and Article I,
Section 18 of the Wisconsin Constitution.

¶81DeBruin
cannot prevail in this case because a religious organization reserved its
rights to terminate its ministerial employees on grounds of
"dissatisfaction," and it exercised those rights.To prevail, DeBruin would have to persuade a
court to enter into an internal parish conflict and second guess the parish's
decision.It would have to deny St.
Patrick the power to make a decision that it explicitly reserved to
itself.This cannot be squared with any
reasonable view of religious liberty.

¶82This
conclusion is supported by this court's decision in Olston v. Hallock,
55 Wis. 2d 687, 201 N.W.2d 35 (1972), where the court reviewed
the termination of an Episcopal Rector.Although the circumstances were different, the court observed:

We think it is clear that the plaintiff is seeking a
civil tribunal review of the merits of the findings and decisions of the Bishop
and the Standing Committee, which determined that there was a serious
disagreement existing between the pastor and the congregation as represented by
its Wardens and Vestrymen, and that for the good of the church there must be an
immediate dissolution of the pastoral relationship between St. Paul's and its
pastor.Under both Wisconsin and
federal case law, such a review in this case is outside the province of
judicial review.

Id. at 698 (emphasis
added).

¶83This
case is like Olston because authority inside the religious organization
has been vested with the right to determine "good and sufficient
cause."As such, this case is
outside the province of judicial review.

¶84For
these reasons, DeBruin loses, and there is no point in extending her
disappointment by remanding this case to the circuit court.

III

¶85St.
Patrick carefully protected its religious prerogatives in the termination
clause of the Contract of Employment.Suppose the clause read differently.

The term of this Agreement
shall begin July 1, 2009 and shall end on June 30, 2010.The PARISH agrees that the DIRECTOR OF FAITH
FORMATION shall not be discharged during the term of this contract, without
good and sufficient cause.

¶86This hypothetical clause employs a standard devised by the parish,
but it appears to open the door to interpretation by a court.

¶87Suppose the contract provided:

THIS AGREEMENT is made this
first day of July, 2009 by and between Jane Doe, herein after referred to as
the DIRECTOR OF FAITH FORMATION, and Saint Patrick Congregation of the
Archdiocese of Milwaukee, herein after referred to as PARISH.The term of this Agreement shall begin July
1, 2009 and shall end on June 30, 2010.

¶88This hypothetical clause contains no explicit "without
cause" protection for the employee and no identified standard for a court
to review.Could a Wisconsin court
review a breach of contract claim under such a contract?If it did, what standards would it
employ?How would it fill in the blanks?

¶89Either of these hypothetical contract clauses would pose a much
more difficult case than the one before us.We would no longer be able to say that the employee's discharge
protection in the termination clause was illusory or that the clause
specifically reserved St. Patrick's religious rights.We would have to grapple with the question of
whether by offering a contract, St. Patrick waived some of its religious
protections.

¶90These hypotheticals are not before us, and, in my view, it is both
unnecessary and dangerous to attempt to determine now how these and other cases
should be decided.

IV

¶91For
more than a century, civil courts in the United States have cautiously
approached questions involving churches and ministers.The Supreme Court approved the practice of
courts abstaining from certain cases involving ecclesiastical questions, well-before
the religion clauses of the First Amendment were incorporated into the
Fourteenth Amendment and applied to the states.E.g., Watson v. Jones, 80 U.S. (13 Wall.) 679
(1872); Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in
N. Am., 344 U.S. 94, 110 (1952).The
Supreme Court has since indicated that the First Amendment is implicated in
these disputes.Kedroff, 344 U.S.
at 116.

¶92The Supreme Court has recognized that matters of church polity,
which includes the selection of ministers, generally receive First Amendment
protection.SeeSerbian E.
Orthodox Diocese for the U.S. of Am. & Canada v. Milivojevich, 426 U.S.
696, 713 (1976).Cf.Gonzalez
v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16 (1929).

¶93However,
Hosanna-Tabor raises the question whether the First Amendment bars
breach of contract claims involving the termination of a ministerial employee,
or whether breach of contract claims are subject to judicial review applying
neutral principles of law.Article I,
Section 18 of the Wisconsin Constitution must be considered in this
determination.We also have to deal with
Wisconsin precedent, which the parties did not cite.Evangelical Lutheran St. Paul's
Congregation v. Hass, 177 Wis. 23, 187 N.W. 677 (1922)("Action by [church] . . . to
compel . . . its pastor . . . to
deliver up to it all property belonging to the organization . . . and
perpetually enjoining him from . . . interfering with any
of the property or functions of the congregation or of assuming or exercising
the functions of its pastor."); Olston, 55 Wis. 2d at 690
(statement of the case) ("This appeal concerns the termination of Olston's
pastoral relationship with St. Paul's Episcopal Church."); Black v. St.
Bernadette Congregation of Appleton, 121 Wis. 2d 560, 360
N.W.2d 550 (Ct. App. 1984)(reviewing the disposition of a breach of
contract claim brought against church where termination was made for
ecclesiastical reason).

¶94In recent years courts, often relying on Rayburn, 772 F.2d
at 1171, have struggled to
balance First Amendment concerns with attempts to enforce breach of contract
claims involving a church and a minister by applying neutral principles of law,
as suggested in General Council on Finance & Administration of the United
Methodist Church v. California Superior Court, County of San Diego, 439
U.S. 1369, 1373 (1978)(Rehnquist, Circuit Justice), andJones v. Wolf,
443 U.S. 595, 602-03 (1979).[19]

¶95In Minker v. Baltimore Annual Conference of United Methodist
Church, 894 F.2d 1354 (D.C. Cir. 1990), the court permitted a contract
claim to proceed but it repeatedly raised caution in doing so.After dismissing one of the contract claims
brought by Pastor Minker against his church based on documents drafted by the
church, the court permitted a second claim to survive a motion to dismiss,
while providing the following warnings:

It is true, as the Supreme Court noted in another
context, courts may not consider provisions whose enforcement would require
"a searching and therefore impermissible inquiry" into church
doctrine.Serbian Eastern Orthodox
Diocese v. Milivojevich, 426 U.S. 696, 723 (1976).

....

The Rayburn court held that entanglements might
result from a protracted legal procedure which might involve subpoenas,
discovery, and other tools designed to probe the mind of the church.772 F.2d at 1170-71.The Church asserts that simply permitting a
court to hear Minker's contract claims might distort church appointment
decisions——causing
churches to make only those choices that avoid the appearance of legal
impropriety.

We
acknowledge that the contract alleged by Minker threatens to touch the core of
the rights protected by the free exercise clause.SeeMcClure v. Salvation Army,
460 F.2d 553, 558–59 (5th Cir. 1972) ("The relationship between an
organized church and its ministers is its lifeblood.The minister is the chief instrument by which
the church seeks to fulfill its purpose.").We also agree that any inquiry into the
Church's reasons for asserting that Minker was not suited for a particular
pastorship would constitute an excessive entanglement in its affairs.SeeNatal v. Christian and
Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989)(inquiry into reasons for
minister's discharge would plunge court "into a maelstrom of Church
policy, administration, and governance"); Rayburn, 772 F.2d at
1171.

....

Furthermore, as the remedy would be limited to the
award of money damages, we see no potential for distortion of church
appointment decisions from requiring that the Church not make empty, misleading
promises to its clergy.

It could turn
out that in attempting to prove his case, appellant will be forced to inquire
into matters of ecclesiastical policy even as to his contract claim.Of course, in that situation, a court may
grant summary judgment on the ground that appellant has not proved his case and
pursuing the matter further would create an excessive entanglement with
religion....Once evidence is
offered, the district court will be in a position to control the case so as to
protect against any impermissible entanglements.Thus, while the first amendment forecloses
any inquiry into the Church's assessment of Minker's suitability for a
pastorship, even for the purpose of showing it to be pretextual, it does not
prevent the district court from determining whether the contract alleged by
Minker in fact exists.Catholic High
School Ass'n v. Culvert, 753 F.2d 1161, 1168 (2d Cir. 1985) (first
amendment prohibition of state board's ability to inquire into nature of
religious motives does not preclude it from asserting jurisdiction).

Minker, 894 F.2d at
1359-61.

V

¶96In my view, this court should not try to decide controversies that
are not before us.Consequently, I join
the mandate to dismiss the case, which amounts to an affirmance of the circuit
court.

¶97For the foregoing reasons, I respectfully concur.

¶98ANN WALSH BRADLEY, J. (dissenting).There is no majority opinion of this
court.Of the five justices who would
affirm the circuit court, three (Justice Roggensack, Justice Ziegler, and
Justice Gableman) would decide this case on the constitution[20]
and two (Justice Crooks and Justice Prosser) would decide it on the specific
contract at issue in this case.Accordingly, because no opinion has garnered the vote of four justices,
nothing set forth in any of the opinions has precedential value.

¶99When I examine the issue certified by the court of appeals, I
conclude that DeBruin's common law contract claims do not implicate free
exercise concerns and therefore do not require dismissal for failure to state a
claim.Further, it would be premature to
determine whether the claims would foster an excessive state entanglement with
religion.Because I would remand this
case to the circuit court for further proceedings, I respectfully dissent.

I

¶100The court of appeals certified the case to this court, asking the
following question: "In light of the Wisconsin Supreme Court's decision in
Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis.2d275, 768 N.W.2d868, are religious
organizations immune from common law breach of contract lawsuits brought by ministerial
employees?"Coulee and other
relevant cases address state involvement in a church's decision to hire or fire
its ministers.These cases do not
address state involvement with other aspects of the employment relationship.Accordingly, I conclude that a narrower
question should be addressed: whether, based on the reasoning of Coulee
and similar cases, a religious organization is immune from common law contract
claims challenging its basis for terminating a ministerial employee.

¶101St. Patrick contends that DeBruin failed to state a claim for relief
because her contract claims are precluded by the state and federal
constitutions.The First Amendment of
the United States Constitution provides, in relevant part: "Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof . . . ."These two clauses provide distinct
protections.

¶102The
first clause, "Congress shall make no law respecting an establishment of religion,"
is referred to as the Establishment Clause.It affords protection against "sponsorship, financial support, and
active involvement of the sovereign in religious activity."Lemon v. Kurtzman, 403 U.S.
602, 612 (1971); see alsoState ex rel. Wisconsin Health Facilities
Auth. v. Lindner, 91 Wis.2d145, 280 N.W.2d773 (1979).An "excessive entanglement" in
violation of the Establishment Clause can arise when the state is required to
interpret and evaluate church doctrine.See,
e.g., Wisconsin Conference Bd. of Trustees of United Methodist Church,
Inc. v. Culver, 2000 WI App 132, ¶15,
237 Wis.2d343, 614 N.W.2d523.

¶103The
second clause, which declares that "Congress shall make no law. . .
prohibiting the free exercise thereof," is referred to as the Free
Exercise Clause.It protects the power
of religious organizations "to decide for themselves, free from state
interference, matters of church governance as well as those of faith and doctrine."Coulee, 320 Wis.2d275, ¶37.

¶104Additionally,
Article I, Section 18 of the Wisconsin Constitution provides, in relevant part,
"The right of every person to worship Almighty God according to the
dictates of conscience shall never be infringed; . . . nor shall any control
of, or interference with, the rights of conscience be
permitted . . . ."This court has explained that this provision, referred to as the Freedom
of Conscience Clause, "serve[s] the same dual purpose of prohibiting the
'establishment' of religion and protecting the 'free exercise' of
religion."State ex rel. Warren
v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972).Nevertheless, it contains more explicit
language than the First Amendment of the United States Constitution, providing
expansive protections for religious liberty.Coulee, 320 Wis.2d275, ¶60.

¶105The
parties' arguments focus on the Free Exercise Clause and the Freedom of
Conscience Clause.Accordingly, I
address the constitutional right to free exercise first.Then, I turn to briefly comment upon the
Establishment Clause concerns that could potentially be implicated by DeBruin's
contract claims.

A

¶106St.
Patrick asserts that state court adjudication of DeBruin's contract claims
would violate its right to free exercise.Based on this court's reasoning in Coulee and the United States
Supreme Court's reasoning in Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC, 565 U.S. __, 132 S. Ct. 694 (2012), St. Patrick contends
that DeBruin cannot challenge her termination because "[i]t is now crystal
clear that the legal analysis of the hiring/firing decisions of religious
organizations begins and ends with the question of
whether . . . [the] employee was a ministerial
employee."

¶107The cases upon which St. Patrick relies do not involve court
enforcement of a contractual promise that was voluntarily made by a
church.Rather, they involve challenges to
claims filed under state and federal anti-discrimination statutes.

¶108In these cases, courts have been called upon to address employment
discrimination claims made against religious organizations, and they have drawn
a line between ministerial and non-ministerial employees.The court-created "ministerial exception"
is an affirmative defense available to religious organizations that precludes discrimination
claims filed by their ministerial employees.

¶109In Coulee, 320 Wis. 2d 275, ¶23, a ministerial
employee of a religious school alleged that she was terminated on the basis of
age, in violation of the Wisconsin Fair Employment Act.This court characterized the employee's suit
as "an effort by the state to intrude into the hiring and firing decisions
of a religious organization," and it concluded that such an effort
violated both the Free Exercise Clause and the Freedom of Conscience
Clause.Id., ¶62.Regarding the Freedom of Conscience Clause,
it explained: "The state simply has no authority to control or interfere
with the selection of spiritual leaders of a religious organization with a
religious mission."Id., ¶88.

¶110The Coulee decision relies heavily on an earlier case from the
Fourth Circuit Court of Appeals.In Rayburn
v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir.
1985), an employee argued that she had been passed over to fill a ministerial
position on the basis of race and sex, and that the church's discriminatory hiring
decision violated Title VII of the Civil Rights Act of 1964.The Fourth Circuit concluded that the
"introduction of government standards to the selection of spiritual
leaders would significantly, and perniciously, rearrange the relationship
between church and state," and that "[a]ny attempt by government to
restrict a church's free choice of its
leaders . . . constitutes a burden on the church's free
exercise rights."Id. at 1169,
1168.

¶111Finally, in Hosanna-Tabor, 132 S. Ct. 694, a ministerial
employee of a religious school alleged that she had been terminated because of
a disability in violation of the Americans with Disabilities Act.The question before the United States Supreme
Court was "whether [the] freedom of a religious organization to select its
ministers is implicated by a suit alleging discrimination in
employment."Id. at
705.The Court recognized the
ministerial exception and explained that "[r]equiring a church to accept
or retain an unwanted minister, or punishing a church for failing to do so,
intrudes upon more than a mere employment decision.Such action interferes with the internal
governance of the church, depriving the church of control over the selection of
those who will personify its beliefs."Id. at 706.[21]

¶112Not one of these cases involved a contract claim brought by a
ministerial employee.To the contrary,
all three cases either imply or state outright that their reasoning, which is
applicable to claims made under anti-discrimination statutes, does not
necessarily extend to claims for breach of contract.

¶113In Coulee, this court acknowledged that "a church's [constitutional]
authority to make hiring and firing decisions...remove[s] the church's
decisions in these matters from the jurisdiction of the courts with respect
to anti-discrimination laws[.]"[22]320 Wis.2d275,
¶40 (emphasis added).Nevertheless, it
cautioned, "We do not mean to suggest that anything interfering with a
religious organization is totally prohibited.General laws related to building licensing, taxes, social security, and
the like are normally acceptable."Id.,
¶65.

¶114In Rayburn, upon which the Coulee court relied, the
Fourth Circuit was more specific with regard to the question we now address.It expressly stated that its analysis would
not extend to breach of contract claims: "Of course churches are not——and
should not be——above the law.Like
any other person or organization, they may be held liable for their torts
and upon their valid contracts."772 F.2d at 1171 (emphasis added).

¶115Most recently, in Hosanna-Tabor, the Supreme Court clearly
stated that it "express[ed] no view" on whether its analysis would
apply to a breach of contract claim brought against a church by a ministerial
employee:

The case before us is an employment discrimination suit
brought on behalf of a minister, challenging her church's decision to fire
her.Today we hold only that the
ministerial exception bars such a suit.We express no view on whether the exception bars other types of suits,
including actions by employees alleging breach of contract or tortious conduct
by their religious employers.There will
be time enough to address the applicability of the exception to other
circumstances if and when they arise.

132 S. Ct. at 710.

¶116I take these courts at their word.DeBruin's contract claims are not precluded by a straightforward
application of Coulee, Rayburn, or Hosanna-Tabor.

¶117Nevertheless, St. Patrick asks the court to break new ground and
extend the holdings of these cases to DeBruin's contract claims.It argues that "the underpinnings and
rationale for why the discrimination laws" cannot restrict a church's
decision to terminate a ministerial employee "apply with equal force"
to a contract claim. The implication of
this argument is that, for the same reason the legislature cannot regulate a
church's decision to terminate a minister, courts must likewise refrain from
adjudicating claims alleging that the church breached terms of an employment
contract by terminating a ministerial employee.

¶118I disagree with St. Patrick that the underpinnings and rationale of Coulee,
Rayburn, and Hosanna-Tabor apply with equal force to DeBruin's contract
claims.The concern underlying these
cases is that the enforcement of anti-discrimination laws would "intrud[e]
into the mission of religious organizations"[23]
by introducing "government standards to the selection of spiritual
leaders,"[24]
"restrict[ing] a church's free choice of its leaders,"[25]
and "depriving the church of control over the selection of those who will
personify its beliefs."[26]There are crucial differences between the enforcement
of an anti-discrimination statute and the enforcement of a contract, and these
differences undermine St. Patrick's concerns about state intrusion into its
free choice of ministerial employees.

¶119Here, DeBruin's claims do not raise concerns about state
"regulat[ion of] the hiring and firing" of ministerial employees, Coulee,
320 Wis.2d275, ¶84, because the relevant law
(contract law) is not a regulatory mandate from the state.The state played no role in St. Patrick's
selection of a minister.It did not
require St. Patrick to enter into a written employment contract, and it did not
mandate any specific contract terms.

¶120Instead, St. Patrick voluntarily selected its minister, freely
negotiated the terms of employment including the circumstances under which the
minister could be fired, and willingly agreed that both parties would be bound
by those terms.Allowing DeBruin's
contract claims to survive a motion to dismiss would merely recognize that St.
Patrick, "like any other person or organization," is bound by its
contracts.Rayburn, 772 F.2d at
1171.Given that this case does not
involve the state attempting to restrict the church's choice of its leaders, I
conclude that this case does not implicate the Free Exercise Clause of the
United States Constitution.

¶121My conclusion is supported by decisions from other
jurisdictions.In Minker v. Baltimore
Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C. Cir.
1990), the court determined that permitting a pastor's Age Discrimination in
Employment Act claim to proceed would violate the Free Exercise Clause.Nevertheless, the court found "compelling"
the assertion that the Free Exercise Clause could not bar an action for a
breach of an employment contract, id. at 1359, and it held that
dismissal of the breach of contract claim was premature, id. at
1361.It explained: "A church is
always free to burden its activities voluntarily through contracts," and
further that "[a] church, like any other employer, is bound to perform its
promissory obligations in accord with contract law."Id. at 1359, 1361.Accordingly, the pastor was "entitled to
rely upon his employer's representations and to enforce them in a secular
court."Id. at 1361.

¶122Similarly, in Petruska v. Gannon University, the court
determined that even though a minister's Title VII discrimination claim must be
dismissed, the "[e]nforcement of a promise, willingly made and supported
by consideration, in no way constitutes a state-imposed limit upon a church's
free exercise rights."462 F.3d
294, 310 (3d Cir. 2006).The Third
Circuit Court of Appeals explained: "On its face, application of state
contract law does not involve government-imposed limits on [the church's] right
to select its ministers: Unlike the duties under Title VII and state tort law,
contractual obligations are entirely voluntary."Id.

¶123For the same reason, I conclude that permitting DeBruin to maintain
contract claims does not control or interfere with St. Patrick's right of
conscience in violation of the Wisconsin Constitution.I
acknowledge that the Wisconsin Constitution provides broader free exercise
protection than the First Amendment.Nevertheless, as explained above, court adjudication of the
claims does not "control or interfere with" a church's selection of
its ministers. See, Coulee,
320 Wis. 2d 275, ¶63.

¶124Instead, if courts routinely dismissed this variety of contract
claim, they might create an unnecessary roadblock hampering a church's free
exercise ability to select its ministers.There is no dispute that a church, like any other organization, enjoys
the freedom to contract.Contract law "promote[s]
and facilitate[s] the reliance on agreements" through court enforcement of
"reasonable expectations that have been induced by the making of a
promise."Joseph M. Perillo, Corbin
on Contracts§ 1.1
at 2 (rev. ed. 1993).[27]The underpinning of contract law is that
competent parties are permitted to bind themselves to voluntary agreements, and
such agreements will be enforced by courts (provided that they are not illegal
or contrary to public policy).See, e.g., Jezeski v. Jezeski,
2009 WI App 8, ¶11, 316
Wis.2d178, 763 N.W.2d176.

¶125If the
ministerial exception discussed in Coulee, Rayburn, and Hosanna-Tabor
were extended to bar contract claims, then termination clauses would not be
worth the paper they were printed on because no civil authority could hold a
religious organization to the terms of any such contract it had negotiated with
a ministerial employee.Candidates for
ministerial positions might be less inclined to enter into these types of
employment arrangements in the first instance.A church's ability to recruit the best and brightest candidates for
ministerial positions could be undermined because the church would be unable to
offer desirable candidates any contractual assurances regarding job security.[28]

¶126I conclude that DeBruin's contract claims should not be dismissed
for failure to state a claim.Rather,
they should be remanded to the circuit court for further proceedings.

¶128In Establishment Clause cases, the question is whether the court is
interfering with "inherently religious matters."Carl H. Esbeck, Religion and the First
Amendment: Some Causes of the Recent Confusion, 42 Wm. & Mary L. Rev.
883, 915 (2001)."[G]overnment does
not exceed the restraints of the Establishment Clause unless it is acting on,
or intruding into, such matters or topics."Id.

¶129As stated above, in both Minker and Petruska, the
court refused to dismiss a minister's contract claim under the Free Exercise
Clause for failure to state a claim.Nevertheless, both courts cautioned that adjudicating the cases might
require court evaluation of the validity of religious doctrine, and both courts
speculated that concerns of "excessive entanglement" with religion
might ultimately require dismissal of the case on summary judgment.

¶130In Minker, 894 F.2d at 1360, the court explained the
potential for entanglement as follows: "It could turn out that in
attempting to prove his case, [Minker] will be forced to inquire into matters
of ecclesiastical policy even as to his contract claim.Of course, in that situation, a court may
grant summary judgment on the ground that [Minker] has not proved his case and
pursuing the matter further would create an excessive entanglement with
religion."

¶131Similarly, in Petruska, 462 F.3d at 312, the court reasoned
that maintaining the claim could, but would not necessarily, foster
entanglement: "Resolution of this claim does not turn on an ecclesiastical
inquiry——or, at least
not at the outset.If [the Church's]
response to Petruska's allegations raise issues which would result in excessive
entanglement, the claims may be dismissed on that basis on summary
judgment."

¶132As the above cases forewarn, it is possible that facts would come to
light which would require the circuit court to "wade[] into doctrinal
waters" and make determinations about "matters of ecclesiastical
policy."SeePetruska,
462 F.3d at 312; Minker, 894 F.2d at 1360.[29]If so, the circuit court could be presented
with an argument that summary judgment should be granted because pursuing the
matter further would create an excessive entanglement with religion.

¶133At this point, however, the case is before this court on a motion to
dismiss for failure to state a claim, and there is nothing in the record about
why DeBruin was terminated or whether that decision involved any matters of
faith and ministry.Any concerns about
excessive entanglement would be "speculative," and dismissing DeBruin's
claim on this basis would be "premature."SeeMinker, 894 F.2d at
1360.The circuit court would be well
situated to address any entanglement concerns if the parties were given the
opportunity to develop the factual record on remand.

II

¶134Justice Roggensack offers a different interpretation of the
constitutional provisions at issue here.Unfortunately, this interpretation paints with too broad a brush, is too
absolute, and reaches far beyond contracts governing the termination of
ministerial employees.The opinion is
flawed in three key respects.

¶135First, it conflates the principles underlying the Free Exercise
Clause and the principles underlying the Establishment Clause.It makes no distinction between the two.Instead, it borrows freely from free exercise
principles and establishment principles alike.

¶136For example, Justice Roggensack's sweeping statement about the
meaning of the First Amendment is based on her assessment of Serbian Eastern
Orthodox Diocese for the United States of America and Canada v. Milivojevich,
426 U.S. 696 (1976).The opinion
summarizes that case as follows: "[C]hurch decisions in matters of faith
and ministry are so fundamental to the free exercise of religious liberty that
civil courts are prohibited from delving into the reasons for religion-based
decisions."Justice Roggensack's
opinion, ¶20.The opinion fails to acknowledge that the
Court's analysis in Serbian Eastern Orthodox Diocese provides a classic
example of the concern, rooted in Establishment Clause jurisprudence, about the
entanglements that arise when a civil court is called upon to interpret church
doctrine to resolve a case.[30]

¶137In Serbian Eastern Orthodox Diocese, Milivojevich, a
defrocked bishop, brought a lawsuit in civil court against his former employer,
the Mother Church.He alleged that his
defrocking had to be set aside as "arbitrary" because the proceedings
against him had not been conducted in accordance with the Church's constitution
and penal code.[31]The Supreme Court of Illinois rendered its
own interpretation of the Church's constitution and penal code, and it
concluded that Milivojevich's defrocking was invalid because the Mother Church
has not followed its own laws and procedures.426 U.S. at 712-13.

¶138The United States Supreme Court explained that "the First and
Fourteenth Amendments permit hierarchical religious organizations to establish
their own rules and regulations for internal discipline and government," id.
at 724, and that civil courts are bound to accept the Church's decisions "on
matters of discipline, faith, internal organization, or ecclesiastical rule,
custom, or law," id.at
713. "To permit civil courts
to probe deeply enough into the allocation of power within a hierarchical
church so as to decide religious law," the Court held, "would violate the First
Amendment in much the same manner as civil determination of religious
doctrine."Id. at 709.The Court reversed out of concern that
"the State will become entangled in essentially religious
controversies."Id. at 709.

¶139By resting her opinion in part on entanglement principles borrowed
from Serbian Eastern Orthodox Diocese,[32]
Justice Roggensack decides an issue not before the court——the application of the Establishment Clause in this
case.St. Patrick's motion to dismiss
was not based upon the Establishment Clause or any concern about excessive entanglement.Instead, it was based on the Free Exercise
Clause and the Freedom of Conscience Clause of the Wisconsin Constitution.

¶140Likewise, the circuit court's decision, the court of appeals'
certification, and St. Patrick's argument do not present an Establishment
Clause issue.When it dismissed
DeBruin's claim, the circuit court ruled that it was precluded by Coulee
(a Free Exercise Clause and Freedom of Conscience Clause case) from addressing
DeBruin's contract claims.The court of
appeals certified the case to this court, asking the following constitutional
question: "In light of the Wisconsin Supreme Court's decision in Coulee . . . ,
are religious organizations immune from common law breach of contract lawsuits
brought by ministerial employees?"

¶141During St. Patrick's briefing in this court, it stridently asserted
that the Establishment Clause principle of excessive entanglement had nothing
to do with the controversy, and that it did not matter whether its reason for
terminating DeBruin was religious or secular.It explained:

Ms. DeBruin attempts to avoid the Coulee
decision by basing her argument on an analysis of federal court cases that
mainly interpret the application of the 'Establishment Clause' of the First
Amendment of the U.S. Constitution and its 'excessive entanglement' test....

Ms. DeBruin's analysis of the reason for her firing is
not relevant to St. Patrick's Motion to Dismiss.As explained above, the Court in Coulee
held that the "Freedom of Conscience Clauses" or the "Free
Exercise Clause" should apply to the hiring and firing decisions of a
religious organization.This analysis is
based on the two prong test [set forth in Coulee].... Ms. DeBruin's entire 'excessive
entanglement' analysis is not on point to this case.

¶142Justice Roggensack's opinion should not conflate free exercise and
establishment principles, particularly when St. Patrick has rejected the
Establishment Clause as a basis for its claim and has declined to brief the
issue.In so doing, the opinion confuses
the interests that are protected by these two clauses, as well as the analyses
that are conducted under these two clauses.

¶143The second flaw in Justice Roggensack's opinion is that it
unreasonably presumes that all decisions to terminate a ministerial employee
will implicate "religious controversies" regarding "matters of
faith and ministry."Justice
Roggensack's opinion, ¶20.It asserts, without reservation:
"[I]nquiry into the validity of a religious institution's reasons for the
firing of a ministerial employee will involve consideration of
ecclesiastical decision-making."Id., ¶29
(emphasis added).

¶144Yet, many decisions to terminate a ministerial employee are likely
to be much more mundane.In this very
case, there is not at this point any allegation that DeBruin was terminated for
an ecclesiastical or religious reason.

¶145In making its unsubstantiated assumption that all contract claims by
ministers challenging their termination will involve entanglement in
"matters of faith and ministry," Justice Roggensack's opinion
overlooks Minker and Petruska, two cases that are directly on
point.Both cases thoroughly discuss the
differences between statutory discrimination claims and contract claims and
provide a reasoned explanation for why a contract claim would not violate the
Free Exercise Clause but might ultimately implicate Establishment Clause
concerns.[33]Minker, 894 F.2d at 1359-61; Petruska,
462 F.3d at 310-11.Both cases explain
that speculating on a motion to dismiss whether entanglements will arise is
premature.Minker, 894 F.2d at
1360; Petruska, 462 F.3d at 311-12.Both cases state
that a determination about entanglement will depend upon the facts and
allegations of the specific case, and that the case can be dismissed on summary
judgment if and when entanglements arise.[34]

¶146Third, Justice Roggensack's opinion makes sweeping pronouncements
that could extend far beyond the confines of this case.These pronouncements are too absolute because
they would preclude the enforcement of a mutually agreed upon contract.Further, if adopted by a majority of the
court, they could have implications for a church's ability to contract in other
settings.

¶147The opinion proclaims that "church decisions in matters of
faith and ministry are so fundamental to the free exercise of religious liberty
that civil courts are prohibited from delving into the reasons for
religion-based decisions."Justice
Roggensack's opinion, ¶20."Included within the decisions protected
by the First Amendment," the opinion contends, "are the hiring and
firing of ministerial employees."Id.,
¶22.

¶148I read Justice Roggensack's bottom line as follows.Even if a church voluntarily enters into a
contract limiting the church's options to terminate a ministerial employee,
that contract is unenforceable because it involves a "church decision in
matters of faith and ministry."Seeid., ¶¶20, 27-28.In other words, a church's ability to
arbitrarily fire ministers is so sacrosanct that the church cannot contract
around it.

¶149If this rationale were correct, what other kinds of contracts
involve "matters of faith and ministry" and would therefore be
unenforceable in civil courts?Justice
Roggensack acknowledges that there are "matters for which a religious
institution may contract that would be appropriate to enforce in the
courts," but only those that do not involve "internal church
decision[s] that affect[] the faith and mission of the church
itself."Id., ¶26 n.8.The rule of law offered by Justice Roggensack
appears to be incredibly broad.

¶150Such a broad rule of law would unquestionably harm those who enter
into contracts with the church.I
conclude that it would likewise harm the church itself.As discussed above, it is the certainty that
a contract can be enforced in court that gives it value, and the freedom to
contract rests on the assumption that valid contracts will be enforced.Once that assumption is undermined, a
contract is worth no more than the paper upon which it is printed.

III

¶151Finally, I turn to address the opinions offered by Justice
Crooks and Justice Prosser.They would
decide this case based on an interpretation of the contract.As a result, their opinions avoid making
determinations about the constitutional issues raised in this appeal.I appreciate the reluctance to unnecessarily
decide issues of constitutional importance.However, constitutional avoidance is not a good fit here, given that the
basis of the motion before the circuit court, the circuit court's decision,[35]
the certification of the court of appeals, and the arguments advanced by the
parties all involve constitutional issues.

¶152Nevertheless, both Justice Crooks and Justice Prosser avoid the
issue before the court and adopt an interpretation of the contract.Justice Crooks contends that the termination
clause is illusory and therefore the entire contract is unenforceable.[36]Justice Prosser contends that although the
employment contract is enforceable as a whole, the termination clause is
illusory because it promises nothing.

¶153I am not persuaded by their interpretations of the termination
clause.An important canon of
construction is that courts should avoid interpretations of a contract term
that render the promise unenforceable because it is illusory.Instead, courts bend over backwards to give
contract terms meaning.SeeVariance,
Inc. v. Losinske, 71 Wis.2d31, 36-37, 237 N.W.2d22 (1976) ("This
court must assume that the parties attempted to enter into a legal and
enforceable contract, and an interpretation favoring legality and
enforceability should be adopted.").[37]

¶154I conclude that there is an alternative interpretation of the
termination clause that would give it meaning.The contract does not
provide that DeBruin can be terminated for "any cause, as determined by
the Parish."Instead, it provides
that she "shall not be discharged . . . without
good and sufficient cause, which shall be determined by the PARISH."

¶155In the context of a
decision to terminate an employee, the phrase "good and sufficient"
cause is defined in Wisconsin's common law to mean an employee's failure to
perform duties under the contract.SeeMillar v. Joint School Dist. No. 2, 2 Wis. 2d 303, 312, 86
N.W.2d 355 (1957) (holding that a school board could dismiss a teacher
"before the expiration of his term of service for good and sufficient
cause.If a teacher fails to perform his
duties under his contract, the board may discharge him from further
service."); see alsoKernz v. J.L. French Corp., 2003 WI App
140, ¶12, 266 Wis. 2d 124, 667 N.W.2d 751 (asserting that Millar
provided a common law definition of "good and sufficient cause.").

¶156It
should be unsurprising that the contract gives the termination decision to St.
Patrick.After all, it always falls to
the employer, rather than the employee, to decide whether an employee will be
terminated.The fact that the
termination clause gives St. Patrick the right to decide whether there is
"good and sufficient cause" does not necessarily render that clause
illusory.

¶157Instead,
it can be interpreted as an agreement that St. Patrick will evaluate the facts
to determine whether the common law definition of "good and sufficient
cause" has been met when making a termination decision.That is, under this alternative interpretation,
St. Patrick must determine whether DeBruin "fail[ed] to perform [her]
duties under the contract," and it will not terminate her unless the
answer is yes.[38]

¶158Both
Justice Crooks and Justice Prosser fail to address the common law definition of
the contract phrase "good and sufficient cause."This common law definition presents a
reasonable alternative interpretation that should be considered, particularly
in light of the principle that courts should "assume that the
parties attempted to enter into a legal and enforceable contract" and
adopt "an interpretation favoring legality and enforceability."SeeVariance,
71 Wis.2dat 36-37.

¶159In sum, I would deny the motion to dismiss for failure to state a
claim.At this stage, it is premature to
determine whether the claims foster excessive entanglement with religion.Unlike the several opinions above, I would
remand for further proceedings.Accordingly,
I respectfully dissent.

[5] Unlike in Coulee,
320 Wis. 2d 275, ¶¶68–87,
where there was a dispute between the parties about whether the teacher was a
ministerial employee, here, DeBruin concedes that her status was that of a
ministerial employee.

[6]The dissent asserts
that this opinion conflates the Free Exercise Clause and the Establishment
Clause in its First Amendment analysis.See,
e.g., dissent, ¶135.In particular, the dissent cites the use of Serbian
Eastern Orthodox Diocese for the United States of America and Canada v.
Milivojevich, 426 U.S. 696 (1976), as an example of such conflation,
claiming that case is "a classic Establishment Clause case."Dissent, ¶136 n.11.However, the dissent is mistaken; Serbian Eastern Orthodox Diocese
is a Free Exercise case.This
interpretation is shared by the following opinions, all of which cite Serbian
Eastern Orthodox Diocese as a Free Exercise case:Petruska v. Gannon University, 462
F.3d 294, 306 (3d Cir. 2006); Minker v. Baltimore Annual Conference of
United Methodist Church, 894 F.2d 1354, 1359-60 (D.C. Cir. 1990); Rayburn
v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1167-68
(4th Cir. 1985).

The dissent attempts to set aside the conclusions of Petruska,
Rayburn and Minker that cite Serbian Eastern Orthodox Diocese
as support for discussion of the Free Exercise Clause of the First
Amendment.Dissent, ¶136 n.11.It does so by quoting articles that generally
discuss First Amendment cases without analyzing a case or controversy as court
decisions do.Id.Scholarly discussions are always of interest,
but they do not address First Amendment principles in the context of a case or
controversy, as judicial opinions do.

[7]Were DeBruin seeking
contract damages for past services provided, her claim would be much like the
corner grocer who delivers food to a parish, sends a bill and remains unpaid
for that which he has provided.Court
adjudication of that type of breach of contract claim would not run afoul of
the First Amendment because it would not require a court to examine the
ecclesiastical decision to terminate a ministerial employee.

[8] We acknowledge there
are matters for which a religious institution may contract that would be appropriate
to enforce in the courts.See, e.g.,
Jones v. Wolf, 443 U.S. 595, 602-04 (1979) (concluding that courts may
dispose of cases involving property belonging to religious institutions on the
basis of "neutral principles of law" if the judicial inquiry can be
conducted in exclusively secular terms). However, the Jones approach has never
been employed in cases where a minister was terminated.Furthermore, Hosanna-Tabor reaffirmed
that the "neutral principles" language from Jones applies to
the "regulation of only outward physical acts," not to
"government interference with an internal church decision that affects the
faith and mission of the church itself."Hosanna-Tabor, 132 S. Ct. at 707.That conclusion is consistent with Coulee, which concluded that
the plaintiff's claim was barred despite the contention that neutral and
generally applicable employment laws could have settled the dispute.Coulee, 320 Wis. 2d 275, ¶¶3, 39 n.13.

[10] Some cases imply that a
religious institution may waive its right to challenge civil court determinations
of disputes for which the First Amendment would otherwise preclude judicial
intervention.SeeAlicea v.
New Brunswick Theological Seminary, 608 A.2d 218, 224 (N.J. 1992).Although waiver is not at issue here, it is
important to note that both the Establishment Clause and the Free Exercise
Clause of the First Amendment encompass societal interests as well as personal
protections.

[14] The
primary goal in contract interpretation is to give effect to the parties'
intent, as expressed in the contractual language. We interpret the language consistent with
what a reasonable person would understand the words to mean under the
circumstances.Where the terms of a
contract are clear and unambiguous, we construe the contract according to its
literal terms.

[The plaintiff] premises his arguments on the assumption that
[the defendant] had an implied obligation to pay the bonus in 1978. Before a
promise to pay a bonus can be enforced, however, a real promise must
exist. . . . Action in reliance upon a supposed promise
creates no obligation on a corporation whose promise is illusory. A
supposed promise may be illusory because it is so indefinite that it cannot be
enforced, or by reason of provisions contained in the promise which make its
performance optional or entirely discretionary by the promisor.

(emphasis
added) (internal citations omitted).

[16] In
preparing to grant the motion to dismiss, the circuit court stated:

But
the Court does note that the contract called for gives the parish the right to
terminate for cause only they -- and they are the ones that can determine
cause so in effect this makes this a contract at will, and therefore even
if the Court were to make further inquiry it would appear that there was the
right of the parish anyways but I don't think I get that far.

In attempting to sum up the argument of the parish,
the circuit court commented:

So
you're stating then that according to the Coulee case this Court cannot make
any inquiry beyond those two steps as to the grounds for the termination or
whether good cause was found or even if the contract is illusory because as you
-- as you recite the terms of the contract good cause is required for firing
the teacher but it's up to the church to determine good cause.So that's illusory.

[21]See alsoCombs
v. Central Tex. Annual Conf. of United Methodist Church, 173 F.3d 343, 350
(5th Cir. 1999) (holding that the free exercise clause prohibited application
of Title VII to a church's decision to terminate a minister) ("[I]n
investigating employment discrimination claims by ministers against
their church, secular authorities would necessarily intrude into church
governance in a manner that would be inherently coercive, even if the alleged
discrimination were purely nondoctrinal.") (emphasis added).

[22] The
United States Supreme Court later clarified that the ministerial exception
operates not as a jurisdictional bar, but rather, as an affirmative defense to
an otherwise cognizable claim.Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 709
n.4 (2012).

[27] An
1875 statement by Sir George Jessel, which has been described as "perhaps
the most famous judicial statement about freedom of contract," identifies
contract enforcement as a key component of the freedom of contract: "[M]en
of full age and competent understanding shall have the utmost liberty of
contracting, and [] their contracts when entered into freely and voluntarily
shall be held sacred and shall be enforced by Courts of justice."Todd D. Rakoff, Is Freedom From Contract
Necessarily a Libertarian Freedom?, 2004 Wis. L. Rev. 477, 479-80 (quoting Printing
& Numerical Registering Co. v. Sampson, 19 L.R.-Eq. 462, 465 (V.C.
1875)); see also Harry N. Scheiber, The State and Freedom of Contract
1 (1998) (defining the "institution of contract" as "the legal
form in which agreements and promises are made, with the purpose of making them
enforceable by the courts").

[28] At
oral argument, St. Patrick acknowledged that its position was
"absolute" and that, "if push comes to
shove, . . . the First Amendment, it trumps the right to
contract...."It could not identify any contractual
assurances that a church could offer a prospective ministerial employee
regarding job security.Instead, it
could only offer the following advice: "I would make sure that [a prospective
ministerial employee] is very comfortable with the people that she wants to
work for.That would the first
thing.You would have to meet the people
and be very comfortable with your employer."

[31]The Mother Church was
"governed according to the Holy Scriptures, Holy Tradition, Rules of the
Ecumenical Councils, the Holy Apostles, the Holy Faiths of the Church, the
Mother Church Constitution adopted in 1931, and a 'penal code' adopted in
1961."Serbian Eastern Orthodox
Diocese for the United States of America and Canada v. Milivojevich, 426
U.S. 696, 699 (1976).The United States
Supreme Court observed that "[t]hese sources of law are sometimes ambiguous
and seemingly inconsistent."Id.

[32] Additionally, the opinion
finds support in the Petruska court's discussion of "ecclesiastical
inquiry" without acknowledging that this portion of the Petruska
opinion addressed the Establishment Clause and concerns about the potential for
entanglement.Justice Roggensack's
opinion, ¶29.

[33]By contrast, Justice
Roggensack's opinion glosses over any distinction between statutory discrimination
claims and contract claims with the conclusory assertion that "beginning
with a contract analysis would cause a court to diminish the priority given to
the policies that drive the First Amendment and would lead a court to err."Justice Roggensack's opinion, ¶26.

[34] Justice Roggensack's
opinion does not even attempt to distinguish these cases, except to note that they
did not analyze the more protective language of the Wisconsin
Constitution.Id., ¶20 n.6.Yet the bulk of the Justice Roggensack's
analysis is based not on the Wisconsin Constitution, but rather, on federal case
law interpreting the United States Constitution.

[35]In passing, the circuit
court commented that the termination clause might be illusory.Nevertheless, the circuit court did not base
its dismissal of DeBruin's claims on an interpretation of the termination
clause.It expressly stated that its decision
to dismiss was not based on the contract, and that any remarks about the
contract would be "just surplusage."Under the circuit court's interpretation of Coulee, it could not
"make further inquiry" into the meaning of the contract."I don't think I get that far," the
court explained.

[36]In Devine v. Notter,
2008 WI App 87, ¶4, 312
Wis.2d521, 753 N.W.2d557, the court of
appeals explained that "[a]n illusory promise is a promise in form only:
one that its maker can keep without subjecting him- or herself to any detriment
or restriction.An archetypal example of
an illusory promise is the statement that 'I promise to do as you ask if I
please to do so when the time arrives.'"

[37]See alsoPacemaker
Yacht Co. v. N.L.R.B., 663 F.2d 455, 459 (3d Cir. 1981) (quoting Retail
Clerks Local 455 v. NLRB, 510 F.2d 802, 806 n.15 (D.C. Cir. 1975)
(referencing the "settled rule of contract interpretation that contract
language should not be interpreted to render the contract promise illusory or
meaningless.")); Walsh v. Schlecht, 429 U.S. 401, 408 (1977)
("Since a general rule of construction presumes the legality and
enforceability of contracts, ambiguously worded contracts should not be
interpreted to render them illegal and unenforceable where the wording lends
itself to a logically acceptable construction that renders them legal and
enforceable."); Gibson v. Neighborhood Health Clinics, Inc., 121
F.3d 1126, 1131 (7th Cir. 1997) ("Indiana courts will not find that there
was a lack of obligation on the part of one party when 'a reasonable and
logical interpretation will render the contract valid and enforceable.'");
Bank of N. Carolina, N.A. v. Rock Island Bank, 570 F.2d 202, 207 (7th
Cir. 1978) ("A construction that will sustain an instrument will be
preferred to one that will defeat it.")

[38] Because there is no factual
development on this issue at this point in the litigation, we cannot know why
DeBruin was terminated.